Veitch Penny LLP - Exeter | Crediton, Devon

Case

Essa v Laing Ltd
Employment Appeal Tribunal - (17 February 2003)

Issues

(1) Race Relations Act 1976
(2) Compensation – Injury to feelings
(3) Damages for psychiatric injury

Facts

The Appellant, Mr Yashin Essa, was Welsh and of black Somali ancestry. At the time, he was a successful amateur boxer who worked as a labourer to maintain himself. From June 1999, he gained employment as a construction worker at the Millennium Stadium in Cardiff. He worked for Roy Rogers, a
subcontractor.

Almost immediately, he suffered petty acts of humiliation and insult. Then on 28 July 1999, a foreman from Laing Ltd racially abused Essa, in front of fifteen other men. He became depressed and his boxing was affected. He complained about the abuse to Laing Ltd, but felt that this complaint was not taken seriously.

On 5 August, Essa left the site without clocking off. He was reprimanded by a foreman, but took offence at that and left the site, not to return. He made a claim of constructive dismissal, and also of race discrimination against both Roy Rogers and Laing Ltd.

The Employment Tribunal held that Roy Rogers employed Mr Essa. His claim for constructive dismissal against Roy Rogers was dismissed, as was the claim for race discrimination. However, the claim of race discrimination against Laing was upheld: it had been responsible for the abuse of its foreman.
The Employment Tribunal observed that Essa had undergone a dramatic personality change following the incident on 28 July and had been treated for depression. It reached its decision on compensation on the basis that the company was only liable for the loss that was “reasonably foreseeable” as a direct result of the discriminatory act. Accordingly, Laing Ltd could have reasonably foreseen that the foreman’s abuse might have caused distress, and that Essa might have left work as a result. However, it could not have reasonably foreseen the extent of Essa’s reaction and his subsequent failure to look for other work. Essa was awarded £5,000 for injury to feelings and £516.76 for financial loss.

Essa appealed the decision regarding the level of compensation, submitting that the original Tribunal applied the wrong test in stating that he could recover only for the loss that was reasonably foreseeable. It should be sufficient merely for him to show a causal link between the act and the loss.

Decision

The Appeal Tribunal found that the original decision had been incorrect. An applicant who had suffered unlawful race discrimination was entitled to compensation where they could show a direct causal link between the act and their loss. It is not limited to harm which is “reasonably foreseeable”. The Appeal Tribunal observed that the statutory tort created by the Race Relations Act 1976 is designed to protect people from race discrimination and the resulting injury. This includes personal injury such as psychiatric damage.

The Appeal Tribunal allowed the appeal and remitted the case to the employment tribunal to reconsider the issue of compensation with respect to the extent to which the direct abuse caused Essa’s psychological injury. The tribunal was to consider whether there may have been any intervening cause of the injury (for example, a failure to follow medical advice).

Comments

It has been clear since the case of Sheriff –v- Klyne Tugs that damages for personal injury have been available as a remedy in discrimination cases. However, the standard of liability has been unclear. The Employment Appeal Tribunal has now ruled that the appropriate test for determining liability is merely whether the unlawful discrimination caused the loss. The Appeal Tribunal made a clear distinction between “statutory torts” (such as those created by the anti-discrimination statutes) and “common law torts” (such as negligence, where the “reasonable forseeability” test applies).